Justice Beyond The Hague

Supporting the Prosecution of International Crimes in National Courts

Author: David Kaye, Executive Director, International Human Rights Program, UCLA School of LawDirectors: John B. Bellinger III, Adjunct Senior Fellow for International and National Security Law, and Matthew C. Waxman, Adjunct Senior Fellow for Law and Foreign Policy

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When the International Criminal Tribunal for the former Yugoslavia (ICTY) was established more than twenty years ago, the international community had little experience prosecuting the perpetrators of genocide, war crimes, and other atrocities. Unfortunately, there has been ample opportunity to build expertise in the intervening decades; ad hoc tribunals have been established to address past crimes in Cambodia and Sierra Leone, and a formal International Criminal Tribunal for Rwanda (ICTR) was convened in the aftermath of Rwanda's 1994 genocide. Since 2002, the International Criminal Court (ICC) has assumed responsibility for new prosecutions, pursuing war criminals in countries unable or unwilling to bring them to justice domestically.

Yet, after more than two decades of experience, the limits of these courts' capabilities are becoming clear. While they have brought some senior leaders to justice, the scope of the courts' budgets and their enquiries can never reach all--or even most--perpetrators of atrocities. They are physically far removed from the scenes of the crimes they are prosecuting, cannot compel evidence or conduct independent investigations, and are vulnerable to changes in funding and international political support.

To overcome these and other difficulties, the international community must place greater emphasis on strengthening the national justice systems of the countries where atrocities have occurred. In this Council Special Report, David Kaye examines existing international justice mechanisms, analyzes how they have succeeded and where they have failed, and explains what reforms national legal systems will require to secure just and peaceful outcomes. Cognizant of the myriad individual challenges facing countries experiencing or emerging from violent conflict, Kaye nevertheless identifies a core set of common needs: political pressure on governments reluctant to prosecute perpetrators; assistance in building legal frameworks and training legal officials; support for investigations, including forensic analysis and security sector reform; and creating belief in the justice system among the local population.

To these ends, Kaye outlines several recommendations for U.S. policymakers and their governmental and nongovernmental partners worldwide. Beginning in the United States, Kaye argues that Washington should expand diplomatic and financial support for national justice systems and appoint a senior official to oversee initiatives from the State Department, Justice Department, USAID, and other agencies. Abroad, he calls for the secretary of state to organize a donor conference to agree on funding priorities and responsibilities for the international community, and to establish a coordinating body to ensure that support for national-level justice systems is properly coordinated and informed by best practices.

Justice Beyond The Hague provides important insights into the strengths and limitations of current international justice mechanisms. It makes a clear case for increasing support to national legal systems and outlines a variety of ways that the U.S. government can improve and coordinate its aid with others. While there will always be a place for international courts in countries that cannot or will not prosecute perpetrators themselves, this Council Special Report successfully argues that domestic systems can and should play a more meaningful role.

More About This Publication

David A. Kaye is the executive director of the UCLA School of Law's international human rights program and director of its international justice clinic. He has taught courses in international law, international humanitarian law, and human rights at Georgetown University, Whittier Law School, and at the universities of Toulouse and Amsterdam. He has written extensively on international humanitarian law and the use of force. Before joining UCLA, Mr. Kaye served as an international lawyer with the U.S. State Department, serving as a legal adviser to the American embassy in The Hague, where he worked with the international criminal tribunals and acted as counsel to the United States in several cases before the International Court of Justice and the Iran-U.S. Claims Tribunal. From 1999 to 2002, he was the State Department's principal staff attorney on humanitarian law and served on several U.S. delegations to international negotiations and conferences. The State Department has honored him with four of its prestigious superior honor awards. Mr. Kaye is a member of the Council on Foreign Relations, the Executive Council of the American Society of International Law, and the Pacific Council on International Policy.

John B. Bellinger III is adjunct senior fellow for international and national security law at the Council on Foreign Relations. He is also a partner in the international and national security law practices of Arnold & Porter LLP. He is one of the four U.S. members of the Permanent Court of Arbitration in the Hague. From 2005 to 2009, Mr. Bellinger was the legal adviser to the U.S. Department of State. Previously, he served as senior associate counsel to the president and legal adviser to the National Security Council and counsel for national security matters at the Department of Justice. He has also served as of counsel to the Senate Select Committee on Intelligence, general counsel to the Commission on the Roles and Capabilities of the U.S. Intelligence Community, and special assistant to the director of central intelligence. Mr. Bellinger received his AB from Princeton University's Woodrow Wilson School of Public and International Affairs, and his JD from Harvard Law School. He also received an MA in foreign affairs from the University of Virginia.

Matthew C. Waxman is adjunct senior fellow for law and foreign policy at the Council on Foreign Relations. He is also associate professor at Columbia Law School and a member of the Hoover Institution task force on national security and law. Mr. Waxman previously served at the U.S. Department of State, as principal deputy director of policy planning (2005-2007). His prior government appointments include deputy assistant secretary of defense for detainee affairs, director for contingency planning and international justice at the National Security Council, and special assistant to the national security adviser. He is a graduate of Yale College and Yale Law School, and studied international relations as a Fulbright scholar in the United Kingdom. After law school, he served as law clerk to Supreme Court justice David H. Souter and U.S. Court of Appeals judge Joel M. Flaum. His previous publications include The Dynamics of Coercion: American Foreign Policy and the Limits of Military Might (with Daniel Byman, Cambridge University Press, 2002) and the Council Special Report Intervention To Stop Genocide and Mass Atrocities: International Norms and U.S. Policy (CFR, 2009).

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